Monday, 30 May 2011

The Hargreaves Review in detail: Copyright exceptions

Thank goodness, the Big Thing that the Prime Minister seemed to be hoping for from Hargreaves was rejected by the Review: a "fair use" exception to copyright. Do the many people who seem to think this is unfortunate understand the exceptions we already have in our law, I wonder? (And at a time when judges are being criticised for fashioning a law on privacy from the legislative clay of the Human Rights Act does anyone really want judges elaborating new exceptions to copyright protection?) They don't fall far short of fair use anyway - and being more precisely targeted there's less danger of collateral damage.

The important issue is that new technologies enable us to use copyright material in new ways - ways which don't necessarily prejudice the economic interests of the copyright owner, and therefore have no effect on the incentive to create. Format shifting is a case in point: the economic interests of the copyright owner should be exhausted once an individual has paid for an authorised copy of a recording. The buyer (who probably thinks of himself or herself as the "owner" of the "music", a misconception that the law could usefully try to find ways to dispel) ought to be free to rip the recording from the CD to put a copy on their personal digital device - free also to make a digital recording from their vinyl record collection. Although the last Government promised a new exception to allow these activities, it failed to deliver and in the UK, unusually, copying lawfully purchased material to other formats remains unlawful without a licence - which the record industry has expressly given, via its trade body. Still, a legal exception would be better than what we have at present.

The reason this remains an outstanding issue is that it is so difficult to define the scope of an exception within the constraints of the information society directive (which is increasingly being called the Copyright Directive, as if it were the only one and had comprehensive coverage) and without introducing a levy system, something successive governments (since at least Mrs Thatcher's) have refused to countenance.

There will also - if the Review be implemented - be a new exception for parody. I firmly believe that in the field of literature and art parody requires no exception: a good parody involves nothing remotely like copying. In music it's more complicated, but a licensing regime would surely be preferable to allowing free use for purposes that fall within the hard-to-define category of parody. Where the parody consists of setting new words to someone else's music, the person availing themselves of the musical work should do so on proper terms - although the copyright owner's right to prevent it should be based only on moral rights (an area which Hargreaves didn't get into, but which could usefully be tightened up in this area). Video as parody seems to be the hot topic at present, and Newport State of Mind the paradigm case - removed from YouTube at the behest of the copyright owner. Shame on you! What harm was it doing to the copyright owner's interests? And over and above that, if a royalty had been paid for the use of the music, I can't see how there could be any realistic objection.

Less contentious will be the proposed exception for non-commercial research for text mining and data analysis, freeing up the results of academic research - making usable material which has often been paid for by the taxpayer and which should therefore be available for general use, not locked away in the vaults of whoever created it (or employed the creator). Non-commercial it would have to be, given the limits of the Directive, and this would deprive it of a lot of useful effect, but I hope the problem is not in any event a big one given that copyright has no business protecting information, or databases given the high-level requirement for originality in that field (which the Court of Justice suggested in Infopaq should, via the information society directive, be applied more generally in the copyright world - a Good Thing, I think, but one that seems to have escaped comment from the Review).

Finally, libraries and archives should have wider rights to make copies to preserve material in their collections - extending the existing rights to audiovisual works and sound recordings. Having been involved with a priceless archive of sound recordings on deteriorating tapes, I can certainly applaud that idea.

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